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New York court hears appeal of 9/11 detainees

NEW YORK — A government lawyer representing former Attorney General John Ashcroft and former FBI Director Robert Mueller was grilled by a federal appeals court Thursday over questions about their role in the roundup of hundreds of Muslim and Arab men in the aftermath of the Sept. 11 attacks.

At a hearing of the 2nd U.S. Circuit Court of Appeals in Manhattan, Judge Richard C. Wesley expressed disbelief when the Justice Department lawyer, H. Thomas Byron, couldn’t say who decided to put the FBI in charge of a program to detain the men in immigration violations and pressure them to cooperate in the terror investigation.

“Tell me now — who did it?” Wesley demanded.

When Byron said he didn’t know, the judge shot back, “Then maybe the former attorney general of the United States knows. It wasn’t an accident that the FBI took over. ... Who made the decision? Someone had to say, ‘It’s the FBI’s call.’”

Wesley also suggested there was evidence that Ashcroft allowed the restrictive detentions to continue even after being told by subordinates that the detainees posed no threat.

“If that’s plausible, then Mr. Ashcroft might be right back in this litigation,” the judge said.

The hearing stemmed from a decision last year by U.S. District Court Judge John Gleeson to dismiss claims against Ashcroft and Mueller in a lawsuit alleging the detainees were abused for months at federal jail in Brooklyn. The judge allowed claims against jail personnel to go forward.

The lawsuit alleges that in the months following 9/11, Ashcroft and Mueller “met regularly with a small group of government officials in Washington and mapped out ways to exert maximum pressure” on detainees and to convince law enforcement that they were suspected terrorists who “needed to be encouraged in any way possible to cooperate.”

Rachel Meeropol argued Thursday that the dragnet resulted in widespread ethnic and religious profiling of innocent men. Once in custody, the men were held in isolation in a high security unit where the lights were never turned off and they were regularly shackled and strip-searched.

“Everyone who was arrested was subjected to maximum pressure,” she said. “It was an investigation with absolutely no vetting.”

Lawyers for Ashcroft and Mueller have claimed the detentions were legal and based on a legitimate law enforcement effort to locate other potential Sept. 11 terror suspects. They argue the pair never specified how the men should be confined, so can’t be held liable for any abuses.